WACKETT v. CITY OF BEAVER DAM (June 13, 2011)

Daniel Wackett worked for the Department of Public Works in Beaver Dam, Wisconsin from 1972 until his retirement in 2009. In 2003, he was responsible for evaluating three bids for a front-end loader needed by the City. At a Board of Public Works meeting, he and his supervisor, the Director of Public Works, both recommended the John Deere front-end loader. The Board voted to recommend to the City Council the more expensive Caterpillar front-end loader. Wackett spoke out against the decision. He even claimed that the Board was improperly influenced. He persuaded a local businessman to write a letter criticizing the recommendation. The local newspaper printed the letter. After numerous citizen complaints, the Board changed its recommendation and the City purchased the John Deere front-end loader. After that incident, the Board refused to promote Wackett. Twice, they appointed someone else Director. From 2004 to 2009, Smith actually served as Acting Director but the Board refused to appoint him to the position. Wackett brought suit pursuant to § 1983. He alleged that the City and Board retaliated against him on account of his speech. Judge Griesbach (E.D. Wis.) granted summary judgment to the defendants. Wackett appeals

In their opinion, Chief Judge Easterbrook and Judges Manion and Williams affirmed. There are three prongs to a First Amendment retaliation claim: a) constitutionally protected speech, b) but-for causation, and c) a deprivation. With respect to the first prong, the Supreme Court in Garcetti held that a public employee's statements in his official capacity are not protected speech. Here, most of Wackett's speech was made in his official capacity and is not protected. To the extent he engaged in protected speech in conversations with the businessman and other citizens, he presented no evidence that the defendants were aware of that speech. With respect to that speech, therefore, he cannot establish causation.